Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 1998 Week 3 Hansard (28 May) . . Page.. 705 ..

MR HUMPHRIES (continuing):

Queensland, the Northern Territory, Western Australia and Tasmania - self-induced intoxication cannot be used to avoid liability for basic intent offences, but can be raised only in relation to offences of "specific intent". Put simply, a specific intent offence is one where, as well as committing a physical act, the defendant must have intended a particular result, such as intending death or grievous bodily harm in the case of murder.

Other common law jurisdictions, including the US and Canada, have legislated so that defendants cannot rely on self-induced intoxication to avoid responsibility for their criminal acts. In England, broadly speaking, the common law position is the same as in the Australian code jurisdictions; that is, the defendant cannot rely on self-induced intoxication to avoid criminal responsibility for his or her acts, other than in relation to offences of specific intent. This position was decided by the House of Lords in Majewski's case in 1977.

Attorneys-General considered the intoxication defence when presented with the final draft of the chapter of the Model Criminal Code dealing with the general issues of criminal responsibility. The code is being prepared for the Standing Committee of Attorneys-General. In 1994, Attorneys rejected the inclusion of the O'Connor position in the code. The code provisions dealing with intoxication now implement the Majewski position by not allowing a defendant to use voluntary intoxication to show a lack of intent to act or omit to do something, but to allow a defendant to use voluntary intoxication to show a lack of intent with respect to the consequences of the act or omission.

However, there has not been a rush by common law jurisdictions to legislate the chapter of the code dealing with general principles of criminal responsibility, because Attorneys have proposed to await the completion of the code, due later this year, so that comprehensive implementation of the code can be considered. There has not been a perception that the O'Connor decision called for immediate attention, as the fact circumstances required for it to be applied so rarely arise. It is rare indeed for a person to be so grossly intoxicated that he or she does acts while lacking the will to act, yet is still sufficiently conscious and able to commit such physical acts. This is why the so-called "defence" so rarely succeeds in achieving an acquittal. The recent ACT decision is a reminder that it, nonetheless, is part of our law and it can successfully be used.

Consistent with the position taken by Attorneys on the issue and the law in a majority of Australian jurisdictions and other common law jurisdictions, I am proposing that the Crimes Act be amended to prevent evidence of self-induced intoxication from being considered in determining whether a defendant intended to do an act which is an element of an offence or whether an act was voluntary. In doing so, the ACT will be closely following the relevant Model Criminal Code provisions. The ACT continues to support the development of such a code to assist jurisdictions to undertake criminal law reform in a way which will, hopefully, achieve a more consistent national approach to criminal liability. It is worth noting that, since the Nadruku decision, the Commonwealth has been prompted to bring forward the commencement of the code provisions relating to intoxication. This means that we will not now have to wait until the year 2000 for the Commonwealth to adopt the code provisions preventing the application of the "drunk's defence". I also understand that the South Australian Attorney-General has recently announced his intention to legislate. He has indicated that he favours a Bill along the lines of the ACT proposal and is seeking views on it.

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .